Automated Summary
Key Facts
The Claimant was dismissed by the First Respondent on 3 February 2020 for gross misconduct related to selling a tractor, fireplaces, and an over mantle without authorization. The Tribunal found the dismissal procedurally unfair due to insufficient attempts to notify the Claimant via email or phone, as he had vacated his caravan and provided no forwarding address. The Claimant was issued a final written warning in July 2020 but did not engage in subsequent disciplinary processes. Awards were made for unlawful deduction from wages (£2,511.27) and accrued holiday pay (£1,554.55), while claims for notice pay and unfair dismissal were partially upheld with a 100% Polkey deduction due to the Claimant's contributory conduct.
Issues
- The Tribunal assessed the fairness of the disciplinary process leading to the Claimant's dismissal. The judge found the employer failed to adequately notify the Claimant via email or phone, relying solely on a post-box method he denied using. This procedural failure rendered the dismissal unfair, though a 100% Polkey deduction was applied as the outcome would have been the same had the Claimant participated.
- The Tribunal found the Claimant was unlawfully deprived of £2,511.27 in statutory sick pay. He received £171.53 instead of the correct rate (£95.85/week) for 28 weeks, leading to the award of the difference.
- The Claimant was awarded £1,554.55 for 28 days of accrued but untaken holiday pay. The judge calculated this based on his monthly take-home pay (£1,202.93) and the absence of evidence showing he took any leave during the relevant holiday year (16 February 2020 to 3 February 2020).
- The Tribunal considered whether the First Respondent (Seighford Hall Nursing Home Ltd) retained its status as the Claimant's employer following share transfers to the Second Respondent (First Blue Propco 2 Limited) in June 2020 and subsequently to the Third Respondent (Thomas Butler) in July 2020. The judge concluded that the First Respondent remained the employer due to continued wage payments and lack of evidence showing a transfer of employment obligations.
- The judge dismissed the notice pay claim, finding the Claimant's conduct (selling unauthorized items) constituted a repudiatory breach justifying summary dismissal. No damages were awarded for wrongful dismissal.
Holdings
- The basic award for unfair dismissal was reduced by 100% due to the Claimant's contributory conduct, including unauthorized removal of company assets and providing inconsistent explanations during the tribunal.
- The effective date of termination was determined as 3 February 2020, with the Claimant entitled to statutory sick pay up to this date. The Claimant was paid £171.53, but owed £2,511.27 for 28 weeks of statutory sick pay (£95.85/week).
- The Claimant is entitled to accrued but untaken holiday pay of £1,554.55, calculated based on 28 days (5.6 weeks) of annual leave at a weekly rate of £277.59 derived from his 2020 take-home pay (£14,435.16/year).
- The unfair dismissal claim was upheld as procedurally unfair due to insufficient attempts to notify the Claimant of disciplinary proceedings. However, a 100% Polkey deduction was applied, as the employer's investigation and evidence would have led to the same dismissal outcome even if the Claimant had participated.
- The claim for notice pay/wrongful dismissal was dismissed, as the Claimant's actions were deemed sufficiently serious to warrant summary dismissal.
Remedies
- The unfair dismissal claim was upheld, but the compensatory award was reduced by 100% under Polkey. The Claimant contributed to his dismissal, and no compensation is due.
- The claim for notice pay/wrongful dismissal was dismissed as the Claimant's conduct constituted a repudiatory breach warranting summary dismissal.
- The Claimant was awarded £2,511.27 for the unlawful deduction from wages, calculated based on statutory sick pay rates and payments already received.
- The Claimant received £1,554.55 for accrued but untaken holiday pay, determined using his weekly take-home pay and 28 days of holiday entitlement.
Monetary Damages
4065.82
Legal Principles
- The British Home Stores v Burchell test, which evaluates whether an employer had a reasonable belief in the employee's gross misconduct and whether dismissal was a proportionate response. The judge found the employer's belief was reasonable and dismissal appropriate.
- The rule that a dismissal takes effect when the employee has had a reasonable opportunity to read the notice, as established in cases like Newcastle upon Tyne Hospitals NHS Foundation Trust v Haywood and Gisda CYF v Barratt. The effective date here was when the Claimant engaged with ACAS.
- The principle that a share sale does not typically constitute a transfer of employment under TUPE (Transfer of Undertakings (Protection of Employment) Regulations 2006), retaining the original employer's identity. The First Respondent remained the employer despite share transfers.
- The Polkey deduction, which allows for a reduction in compensatory awards if the employer can demonstrate the dismissal would have occurred even with a fair process. A 100% deduction was applied here because the judge concluded the outcome would have been the same.
Precedent Name
- Newcastle upon Tyne Hospitals NHS Foundation Trust v Haywood
- Polkey v AE Dayton Services Ltd
Cited Statute
- Working Time Regulations 1998
- Employment Rights Act 1996
- Newcastle upon Tyne Hospitals NHS Foundation Trust v Haywood (2018)
- Polkey v AE Dayton Services Ltd (1987)
Judge Name
Hindmarch
Passage Text
- I have formed the view that the Claimant did not have notice of the disciplinary process nor of the dismissal and that Mr Butler did not make sufficient attempts to bring these to his attention.
- I find the First Respondent faced with these accounts would be entitled to form a reasonable belief that the Claimant had sold the fireplaces, particularly in light of the independent (of the parties) account given by Mr Kettlewell.
- My conclusion is that, having regard to the British Home Stores v Burchell test, had the Claimant engaged in the process the outcome would have been the same... a full (100%) Polkey deduction should be made for any compensatory award.